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Constructive unfair dismissal and affirming the contract

View profile for Chris Dobbs
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Cockram v Air Products Plc

The Employment Appeal Tribunal (“EAT”) has held in this case that an employee lost the right to claim constructive unfair dismissal because they gave longer than the contractual minimum notice period.

Mr Cockram resigned his employment in response to what he considered to be a fundamental breach by his employer of the implied term of trust and confidence. However, he gave 7 months’ notice rather than the 3 months required by his contract.

The EAT held that the fact Mr Cockram worked such a long notice period meant he had, in effect, accepted any breach to his contract. He had, for his own financial reasons, given a longer notice period than was contractually required, and had thereby affirmed the contract. His constructive unfair dismissal claim was therefore struck out.

In Practice

Employment Partner Kate Fretten says “This decision will seem harsh to employees but a sensible one to employers. Technically it must be correct and we will always advise employees considering bringing a claim for constructive unfair dismissal that they should act on the breach of contract by resigning immediately and not working any notice period. Similarly, employers should be aware that any employee who resigns and claims constructive unfair dismissal, but then works a significant notice period, is likely to have their claim weakened.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 andKate or Paul will be happy to discuss it with you.

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